Censorship and the Presumption of Innocence

When speaking of criminal law and the presumption of innocence, we often say it is better that 99 guilty people go free than for one innocent person to be wrongfully convicted.

To me, this is also true of free speech versus censorship. If the effort to censor "misinformation" casts some factual truths or political viewpoints into the censorship dragnet, that cost is too high.

Racial Classifications and the Law

If you are interested in racial classifications and equality, consider reading Prof. David Bernstein's new book, Classified; The Untold Story of Racial Classification in America: link

Con Law II Spring 2023 Required Casebook

 Be sure to purchase the 16th edition, not one of the earlier editions:

Varat, Amar & Caminker, Constitutional Law: Cases and Materials (Foundation Press 16th edition 2021) (ISBN: 978-1-64708-361-8)

Solzhenitsyn: Which is Higher--Law or Morality?

 “It is widely accepted among lawyers that law is higher than morality - law is something which is worked out and developed, whereas morality is something inchoate and amorphous. That isn't the case. The opposite is rather true!” --Aleksandr Solzhenitsyn

Should law reflect morality? Or should morality reflect law?

If You Are Censored or Cancelled

 If You Are Censored or Cancelled: One of my obligations to my students is to make sure their First Amendment rights are respected and protected here in the Law College. If you are the victim of censorship, whether based upon something you said on campus or off campus, I am always available to talk with you about it. You have strong First Amendment rights. And the Law College has made a commitment to diversity, inclusion, free speech, and community which should transcend ideological differences. 

Pro tip: if you are ever called into an administrator's office based upon something you said, make sure to record the meeting to ensure that you have an accurate account of what you supposedly said, what the complaint against you is, and why the administrator believes your speech needs correction. Be polite, but also be courageous. Ask the Administrator about the Free Speech Clause and how it applies to state universities. Students have powerful free speech rights, and an accurate record may prove to be of critical importance to protecting your constitutional rights.

Thomas Sowell Wisdom

 “When people get used to preferential treatment, equal treatment seems like discrimination.” - Thomas Sowell

Dave Chappell on Cancel Culture and Freedom of Expression

  "The more you say I can't say something, the more urgent it is for me to say it....It has everything to do with my right, my freedom of artistic expression."

Scalia: The Constitution Says What it Says, and It Doesn't Say What It Doesn't Say

 

The best way to read SCOTUS cases in constitutional law is to ask what question is the Court trying to answer? Is the Court trying to answer the question "what does the Written Constitution say about this issue?" Or "what should a hypothetical constitution say about this issue?" 

The former is the proper work of the judiciary. The latter is the work of the People via the amendment process.

What I Am Reading This Summer

 Ryan T. Anderson and Alexandra DeSanctis, Tearing Us Apart: How Abortion Harms Everything and Solves Nothing.

This book has my highest rating! Here is a link to Amazon.

Erika Bachiochi in NYT on "What Makes a Fetus a Person?"

 Here is the link to Ms. Bachiochi's article. And here is a money quotation:

Dobbs v. Jackson has returned the issue of abortion to legislatures. There, pro-lifers will work to ensure that unborn children in every jurisdiction are protected by law. Though individual states can (and already have) sought to protect the most vulnerable human beings through ordinary legislation, constitutional protection of unborn children as equal “persons” under the law remains the movement’s ultimate — if elusive — goal.

Making this constitutional case will require rejecting the concept that a rights-bearing person is fundamentally self-owning and autonomous. Indeed, it is precisely the unborn child’s state of existential dependence upon its mother, not its autonomy, that makes it especially entitled to care, nurture and legal protection too. To exclude some human beings from the law’s protection because of their size, location and state of dependency (and post Roe, whichever jurisdiction their mother happens to be in) seems to pro-lifers an egregious human rights violation, just the kind we believe the 14th Amendment was meant to prevent.

 If you are interested in where we might be going in a post-Roe world, read her entire article in the Times.

Another Important SCOTUS Decision: West Virginia v. EPA

 Another important case decided today.

The Supreme Court sharply limited the power of the EPA to enact regulations without Congressional authority under the major questions doctrine. This decision returns power to Congress and limits the power of unelected bureaucrats in federal agencies to make laws on major issues without clear congressional authority. The Constitution assigns the power to make laws to the Legislative Branch, not the Executive Branch.

From SCOTUSblog:

 Here is the opinion from John Roberts in West Virginia v. EPA: https://supremecourt.gov/opinions/21pdf/20-1530_n758.pdf. The three liberal justices dissent.

Prof. Michael Paulsen on "The Magnificence of Dobbs"

 "Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision."

Here is a link to the article

Historic Decision: Dobbs Overrules Roe v. Wade

 Dobbs overrules Roe and Casey ("Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.")

Here's the link: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

Carson v. Makin (discriminatory school funding decision)

 From SCOTUSblog:

The Supreme Court STRIKES DOWN a Maine education program that provides tuition assistance for students to attend some private schools but excludes schools that provide religious instruction. SCOTUS says the exclusion of religious schools is unconstitutional.

Here's the opinion from John Roberts in Carson v. Makin: https://supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf. The vote is 6-3 along ideological lines, with Breyer, Sotomayor, and Kagan in dissent.

Jack Phillip's Book on the Masterpiece Cakeshop Case

Link:

The Cost of My Faith: How a Decision in My Cake Shop Took Me to the Supreme Court

 

Jack is a hero of mine because of his costly stand for his faith and his First Amendment freedoms.

A New Idea?

 "Here's an idea. Let's debate issues and stop trying to punish wrong thinking." --Prager U

Slavery, Abortion and The Masks of the Law

 There are physical masks and there are masks that the law creates--legal fictions--to conceal the person beneath the legal mask.

These masks of the law are used to conceal the humanity of those the law wishes to treat harshly. Slaves were masked as "property" to conceal their humanity. Unborn babies are masked as "potential lives" by Roe v Wade and the abortion liberty. Masks--whether physical or legal--conceal the face (and thus the humanity and individual personhood) of the person behind the mask. 

Here is a video of a CLE I gave last year--at the Nebraska Bar's Annual Meeting--on how the masks of the law can be used to treat persons as nonpersons (as property) when the law wishes to act harshly and unjustly:

https://use.vg/jQuD5e

 In this video, I discuss how the masks of the law enabled slavery in the past and abortion in the present. The idea is not so much to debate legal abortion as to understand how the masks of the law can be used to obscure the reality and human dignity of human persons.

If SCOTUS Overrules Roe v Wade Is It An Attack on Democracy?

 Or, is it just the opposite? 

By overruling Roe, the abortion issue will be returned to Congress and the states; and thus for the first time in almost 50 years, we the people will be able to exercise our right of democratic self-government by voting on the issue.

Here is an article by Prof. Josh Blackman

And here are some excerpts:

Chief Justice Roberts explored this concept in his Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

Justice Scalia made this point more forcefully in his Obergefell dissent:

Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito's draft opinion explains that there are many conceptions of liberty, quoting Lincoln and Berlin:

Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the "liberty" protected by the Due Process Clause because the term "liberty" alone provides little guidance. "Liberty" is a capacious term. As Lincoln once said: "We all declare for Liberty; but in using the same word we do not all mean the same thing." In a well-known essay, Isaiah Berlin reported that "[h]istorians of ideas" had catalogued more than 200 different senses in which the terms had been used.

It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.

 

 I would add that overruling Roe restores multiple rights:

1. As Prof. Blackman says, the right of the people to govern themselves though the democratic process

2. The federalism right to be governed locally in the states rather than centrally by unelected judges

3. The right of the unborn child to be recognized as a person, a living human being, whose life matters

Hadley Arkes "On Overruling Roe"

  Here is an interesting take on how the Court should write an opinion overruling Roe.

Prof. Mike Paulsen on The One and Only Pro-Life Argument

Here

And here is a key excerpt:

 When all is said and done, then, there is one and only one pro-life argument: that abortion kills a separate, living human being. That argument is premised on a simple proposition of biology, not one of theology: the human organism—the entity that is first a zygote, then an embryo, fetus, newborn, toddler, teenager, and adult—is the same human biological organism, merely at different stages of his or her life cycle. (If you had killed me at any of those stages, you would have killed me.)

 Is there really any room for doubt about this, as a factual proposition? If not, shouldn’t that be the key point in any debate over abortion, and the response to any red-herring argument about women’s rights, social policy, sexual ethics, or men’s behavior? If the unborn child is a human being, does that not profoundly limit the scope of morally allowable arguments that might be made to justify killing him or her? Doesn’t it essentially eliminate all such arguments (except self-defense—where killing the fetus is a tragic necessity to preserve the life of the mother)?

 So, what do you know (not feel--know) about the reality of life in the womb? Is the unborn child a living human being? Is he or she alive? Is he or she human?

For me, the answer to those questions is why I am 100% sure that Roe v Wade is wrong because abortion is the violent taking of the life of a living human being.

And here is a short article on the science of life in the womb:

 Abortion, Science Unique from Day One: Pro-Life Is Pro-Science